Recent Evolution of the ‘Paramour Provision’ History

The so-called “paramour provision” often included in Permanent Parenting Plans across the state of Tennessee prohibits the parents from allowing a boyfriend or girlfriend to stay overnight while the children are present. It usually states something along these lines:

During the times the Mother and Father are exercising parenting time with their child[ren], neither of them will have a member of the opposite sex who is not related to them by blood or marriage stay overnight.

In 2005, the legislature directed the Administrative Office of the Courts (AOC) to develop a standard permanent parenting plan form to be used consistently by each court within the state. The section in the form entitled “Other” or “Special Provisions” is left blank and is designed to give parties a place to address issues not covered elsewhere in the form’s subsections. The standard form developed by the AOC does not include a paramour provision.

Attorneys (and sometimes judges, sua sponte) began to add paramour provisions to parenting plans automatically based on a “common sense” understanding that children could suffer adverse affects by being exposed to such things as drugs, alcohol abuse and the overnight visits of a parent’s paramour.

It is not always easy for courts to judge the ability of each parent to choose boyfriends or girlfriends who will be a positive influence on the children. Furthermore, it would likely prove burdensome on the court system if courts had to constantly hear from a parent every time his or her ex-spouse started dating somebody new. Arguably, it is easier to utilize a blanket rule preventing overnight visits with paramours, and some courts have required it in every parenting plan.[1]

However, a blanket rule seems to ignore the fact that courts may restrict visitation rights “upon the presentation of clear and definite evidence that permitting continued visitation will jeopardize the child physically, emotionally, or morally.”[2] There has been very little law specifically dealing with the appropriateness of a paramour provision, until recently.

Barker v. Chandler

On June 29, 2010, the Tennessee Court of Appeals issued a groundbreaking opinion in Barker v. Chandler[3]. The opinion was the result of a second appeal[4] of a parenting plan entered by the Gibson County trial court several years post-divorce. At the time of the parties’ 1998 divorce, the parenting plan included no paramour provision. Years later, by agreement, the parties sought to modify the parenting plan for their two teenage children, a son and a daughter. At the time, the father lived with his new wife, and the mother lived with her same-sex partner of nine years. The trial court entered a consent order requiring all parties involved (both parents and their significant others) to undergo psychological evaluations and testing. The psychologist found that the teenage son had a good relationship with both parents and their respective significant others, but the teenage daughter had a much better relationship with her mother and her mother’s partner than with her father and stepmother. The psychologist recommended that the son live with the father and that the daughter live with the mother. The parties agreed with the recommendation and completed a parenting plan using the standard form developed by the AOC. By this time, however, the standard form included a paramour provision as mandated by a local rule. The father had not requested inclusion of the provision, and the mother objected to its inclusion, arguing that the children’s best interests would be served by permitting them to stay in her home along with her partner. Since Tennessee does not recognize same-sex marriages, the mother’s partner was by definition a “paramour.” The trial court refused to eliminate the provision, stating that it was “required by the laws and public policy of the State of Tennessee.”[5]

The provision proved to be a great hardship on the mother. According to court records, she and her partner maintained separate residences for some time in order to comply with the order. This arrangement, however, became a financial burden, and the two started living together again, effectively preventing the children from being able to visit for about eight months.[6] The separate residences also disrupted the mother’s “family unit,” and she had to stay with a relative in Tennessee when exercising her visitation.

The mother appealed, and the mother’s arguments were unopposed by the father in the appeal. The Court of Appeals reversed, holding that Tennessee law did not, in fact, require inclusion of the paramour provision. While the local rule could be “instructive, it is subordinate to Tennessee public policy mandating that trial judges make decisions regarding residential parenting of children upon the basis of the best interest of the child”.[7] The trial court had the discretion to alter or eliminate the paramour provision if it found that doing so would be in the children’s best interests.[8]

When the matter was remanded to the trial court with instructions to determine whether the provision was, in fact, in the best interests of the children, the trial court again refused to eliminate or alter the provision, ruling that it was indeed in the children’s best interest.

Upon the mother’s second appeal, the Court of Appeals held that the trial court abused its discretion because the record was devoid of any evidence to support a finding that the restriction was in the children’s best interests. The psychologist who evaluated all those involved had cited research showing no adverse impact on children living with parents with same-sex partners.[9] Furthermore, this particular same-sex partner had a positive influence on the children and was a positive parent surrogate. There was no evidence that excluding the mother’s partner was in the children’s best interests, and in fact, the evidence suggested that the paramour provision was more harmful than helpful to the children.

Bargmann v. Bargmann and Small v. Small

Since the Chandler opinion, the Court of Appeals has followed suit in other recent cases. One notable example is Bargmann v. Bargmann[10] in which the mother appealed the trial court’s sua sponte inclusion in the parenting plan of a paramour provision that applied only to the mother but not to the father. The mother lived with her boyfriend, but during her parenting time, her boyfriend stayed in a hotel. The trial court justified inclusion of the provision on the basis that the mother’s living arrangement was “amoral” and that she was setting a pattern for her daughter to follow.

When the mother appealed, the father argued that the fact that the mother sent her boyfriend away during her parenting time was an admission that her boyfriend should not be spending the night during her parenting time. The mother argued that during the pendency of the action, she was still married to the father, and for her to exercise parenting time while spending the night with her paramour while the divorce was pending would be inappropriate; however, such continued restrictions were unnecessary after she was no longer married.

The Court of Appeals vacated the provision, determining that the record did not support such a restriction on the mother’s parenting time, as there was no proof that the child’s physical, emotional or moral well-being was jeopardized by the mother’s living arrangement. The court noted that “the trial court’s personal notions of moral rectitude are no substitute for proof of actual or threatened harm to the children.”[11] The court also noted that “[w]hile a [paramour] provision of this sort might be appropriate in the initial stages of a divorce proceeding, there was no evidence in this record to suggest that a permanent restriction on Mother’s exercise of her parenting time was necessary.”[12] Furthermore, it was inappropriate that the paramour provision applied only to the mother and not likewise to the father.[13]

The Court of Appeals’ opinion in Small v. Small[14] came out in January 2010, between the first and second Chandler appeals, although the Small opinion does not cite Chandler. The Court of Appeals in Small held that the trial court abused its discretion by imposing a restriction prohibiting the father’s paramour from “be[ing] around” the parties’ minor daughter, as there was no evidence of harm to the child. The child recently had been diagnosed with a form of autism. In light of this and in light of the fact that the child had been through “drastic changes in her life in a very short period of time, from the school that she now attends, to where she may be living in the future,” the trial court concluded that the child “needs to be alleviated from any additional stress and taking into consideration the best interest of the parties’ minor daughter, the Court believes that [the father’s] girlfriend shall not be allowed to be around the parties’ minor daughter at this time.”[15]

The father appealed the restriction, pointing out that the restriction applied only to his paramour and not to any other individuals. The trial court did not explain the stress imposed on the child as a result of the presence of the father’s girlfriend and only discussed stressful changes in the child’s life unrelated to the girlfriend. Moreover, the mother did not oppose the child having unrestricted visits with the father. In the absence of sufficient evidence of harm to the minor child from contact with the father’s paramour, the Court of Appeals found that the trial court abused its discretion by imposing the restriction.

Practical Application of the Case Law

In light of the recent case law, some lawyers are recommending the following in building a client’s case for not including a paramour provision: a paramour relationship that is stable and ongoing; a history of abiding by any existing court orders prohibiting a paramour’s overnight stay; petitioning the court to order psychological evaluations of the children, the parents, any step-parents, and the paramour who seeks to stay overnight with the parent and children; the court-ordered psychologist’s report or other expert testimony stating that having the paramour sleep in the parent’s home will not be adverse to the children’s best interests or even that it would be a positive influence on the children; a showing that it would cause financial and emotional harm if the paramour were required to maintain a separate residence; and the other parent not opposing the absence of a paramour provision.[16]

What to Expect in the Future

The paramour provision will never be abolished completely, as there are indeed situations where such a restriction is necessary. It can hardly be debated that it is never in a child’s best interest to witness a parent’s multiple sexual partners coming and going. However, the Court of Appeals has made it clear that a paramour provision should be included only if a fact-specific analysis of the evidence reveals that the child’s best interests depend on it.

MARLENE ESKIND MOSES is the principal and manager of Moses Townsend & Russ PLLC, a family and divorce law firm in Nashville. She is the immediate past president of the American Academy of Matrimonial Lawyers. She has held prior presidencies with the Tennessee Board of Law Examiners, the Lawyer’s Association for Women, and the Tennessee Supreme Court Historical Society. She has also served as vice president for the United States Chapter of the International Academy of Matrimonial Lawyers. The Tennessee Commission on Continuing Legal & Specialization has designated Moses as a Family Law Specialist; she is Board Certified as a Family Law Trial Specialist.

Co-author BETH A. TOWNSEND is a partner at Moses Townsend & Russ PLLC, a family and divorce law firm in Nashville, where she has practiced since 2001. She earned her law degree from Vanderbilt University and her undergraduate degree from Duke University.